Edward A. Thornlow v. Long Island Rail Road Company

Appellant's motion for "reargument" was actually one for renewal of plaintiff's motion, as it was based upon additional affidavits
and exhibits. Hence, we will disregard its misnomer and treat the order denying "reargument" as an appealable order denying
renewal of plaintiff's motion (Matter of Rand v. Diamond, 273 App. Div. 859; Matter of Lesser v. Board of Educ. of City of
N. Y., 18 A.D.2d 388; Matter of Kornfeld v. Wagner, 15 A.D.2d 921). In our opinion, the motion for renewal should have been
granted and, upon renewal, the order striking out appellant's answer should have been vacated and plaintiff's motion granted
to the limited extent herein indicated. On this record it does not clearly appear that appellant's failure to produce its
former employee, Mauceri, for examination was willful and deliberate. Hence, it was an improvident exercise of discretion
to impose the drastic sanction of striking out its answer. Under all the circumstances of this case, we find it a fair sanction,
and so order, that appellant be precluded from calling Mauceri as a witness at the trial of this action unless he submits
to a pretrial examination by plaintiff at least 10 days before the trial. This determination is, of course, without prejudice
to any other steps that plaintiff may be advised to take to obtain a pretrial deposition from Mauceri, such as, for example,
a motion to have him physically examined by an impartial doctor and a motion to examine him as a witness. Disposition Order of April 29, 1969 reversed, on the law and the facts, without costs; appellant's motion for renewal, misnamed
as one for reargument, granted; order of April 11, 1969 vacated; and plaintiff's said motion granted to the limited extent
hereinafter indicated. Appeal from order of April 11, 1969 dismissed, without costs, as academic, in view of the determination
herein on the appeal from the order of April 29, 1969.